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September 18, 1993


The opinion of the court was delivered by: THOMAS J. MCAVOY


 New York State prison inmate Kevin Richardson brought this action Pursuant to 42 U.S.C. § 1983 against defendant correction officers seeking compensation for damages arising out of events which occurred on May 31, 1982 at Coxsackie Correctional Facility and the resultant Superintendent's Hearing held on June 4 and June 7, 1982. Plaintiff alleges that on May 31, 1982 he was subjected to excessive force during an altercation with prison guards and then denied timely medical attention for the injuries he suffered, both in violation of his rights secured by the Eighth Amendment. Richardson also alleges that during a disciplinary hearing held June 4 & 7, 1982, he was denied due process in violation of his rights secured by the Fourteenth Amendment.

 The matter was tried to the bench in Binghamton, N.Y. on May 25 and 26, 1993. The following constitutes the court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52.


 Between April 17, 1982 and April 25, 1982, approximately twenty inmates were transferred from the Great Meadow Correctional Facility ("Great Meadow") to the Coxsackie Correctional Facility ("Coxsackie"). This transfer followed a prisoner uprising at Great Meadow in which an inmate named "Butch" Harvey was killed. It was plaintiff's contention at trial that Harvey's death was attributable to staff officers at the Great Meadow facility. It was plaintiff's further contention at trial that the altercation between himself and the defendants at Coxsackie was in retribution for his willful participation in the investigation into Harvey's death.

 The facts of the case show that plaintiff was transferred from Great Meadow to Coxsackie on April 25, 1982, shortly after the uprising at Great Meadow which resulted in Harvey's death. The facts also show that plaintiff was placed in the Special Housing Unit (SHU) upon arrival at Coxsackie. While most of the inmates transferred with plaintiff from Great Meadow to Coxsackie were also confined to SHU, those inmates were so confined for purposes of protective segregation. Plaintiff, on the other hand, was placed in SHU because he had been sentenced in 1981, while at Great Meadow, to two years in SHU with loss of privileges following an earlier Superintendent's Hearing wherein he was found guilty of manslaughter in relation to the stabbing death of another inmate.

 It should be noted that the finding of the Great Meadow Superintendent's Hearing was later expunged by court order. However, it is important to note that this order was not issued until September of 1983, sixteen months after the incident at issue in this case. This is significant with regard to plaintiff's due process claim and in understanding plaintiff's status as a SHU detainee when judgment was passed upon him at the June, 1982 Superintendent' Hearing at Coxsackie. The court now turns to examine the events which underlie plaintiff's complaint.

 A. Operative Events of May 31, 1982

 Plaintiff's complaint has its genesis in a disturbance which occurred on May 31, 1982 in SHU at Coxsackie. Plaintiff alleged in his complaint that on this date he was repeatedly struck and kicked by various defendant Correctional Officers while being taken out of his cell. Plaintiff further alleged that the beating he received at the hands of prison authorities was administered without provocation. Defendants asserted in their pre-trial papers that a different course of events occurred on May 31, 1982. They claimed that upon taking plaintiff out of cell for purposes of escorting him to the recreation yard plaintiff turned and, without warning or provocation, struck C.O. Huff in the face and then continued to struggle with the other C.O.s who sought to assist Huff in subduing the plaintiff.

 At trial, plaintiff testified and also called fellow inmates Nathan Giles, Carlos Alomar, and Caseem Jacobs as witnesses. The defendants called Sgt. Thomas McKernon, Lt. Daniel Martuscello, C.O. James Huff, C.O. Michael Baldwin, and C.O Charles Finn as witnesses.

 With regard to the excessive force claim, plaintiff testified that on May 31, 1982, he was "called out" of his cell by prison authorities purportedly for the purpose of escorting him to the exercise yard for his daily exercise regimen. Plaintiff claims that he was told to place his hands on his head, to face the back wall of his cell, and to begin backing out of his cell into the hallway. He also testified that he was told by one of the correction officers that if he removed his hands from the back of his head he would be struck by the officers. Richardson testified that upon exiting his cell he was ordered to place his hands on the adjacent wall and to assume the "frisk position." He asserts that upon removing his hands from the back of his head he was immediately struck from behind, was knocked to the floor, and then was subjected to a beating by the various defendants. He claims that he made no aggressive or hostile motions, that he threw no punches and made no kicks during the ensuing moments, and that he merely laid on his back on the ground with his hands and feet above him in an attempt to ward off the various blows administered by the defendant officers. Plaintiff claims that both correction officers and supervisory personnel participated in the altercation.

 Plaintiff's version of the events was corroborated by the testimony of his first witness, Carlos Alomar. However, the court finds the testimony of witness Carlos Alomar to be of little validity. Although Alomar professed to have seen Plaintiff subjected to blows, kicks, and punches from defendants, it became clear to the court, as established by records, photographs, witness testimony, and plaintiff's own diagram of the SHU housing unit, that Alomar, at the time of the events in issue, was housed in a separate wing of the Special Housing Unit far removed from the altercation which ensued. Consequently, it is clear to the court that this witness could have seen nothing that transpired relevant to the instant disturbance. It is further significant to note that Alomar's testimony closely paralleled the testimony of Giles and Jacobs with respect to how the events transpired thus giving the impression of contrived testimony among the plaintiff's various witnesses.

 On cross-examination, however, Giles stated that he could not unequivocally state that plaintiff was struck in the head and conceded that he saw nothing before plaintiff was on the floor. Additionally, Giles stated that did not recall the presence of a supervisory officer and stated that he saw "all blue shirts." *fn1" He testified that he remembered the presence of C.O. Baldwin, C.O. Fonda, C.O. Huff, and C.O. Finn, but could not identify any specific actions on the part of any of the particular officer with respect to the altercation.

 Caseem Jacobs testified that the altercation occurred in front of his cell. He stated that he first heard plaintiff being ordered by a correction officer to take his hands off the back of his head and stick them in his pockets. He further testified that when plaintiff did as he was instructed, a correction officer began kicking, punching, and hitting plaintiff with his baton. Jacobs claimed that the beating took place over the course of five minutes and that plaintiff was knocked unconscious and then placed in a cell. However, that witness testified that he believed it was C.O. Fernandez and C.O. Hurley that assaulted the plaintiff although he could not identify any acts attributable to either officer.

 The testimony of the witnesses Giles and Jacobs was cast in serious doubt because of the events that transpired prior to the May 31, 1982 incident at the Coxsackie facility. Testimony was offered by the defendants which shows that there had been five or six previous incidents of assault on staff officers by inmates in the days immediately preceding May 31, 1981, all of which occurred while inmates were being escorted out of SHU for the exercise yard or for other reasons. There was also evidence presented that shows that these isolated attacks were in retaliation for the death of Inmate Harvey at Great Meadow. Further, the various defendant officers testified that since the practice of unprovoked attacks by the SHU inmates on correction officers was encouraged verbally by the other inmates, a procedure had been instituted approximately two weeks before the May 31, 1982 incident whereby steel flaps, or covers, were placed over the windows in the SHU cell doors. These flaps were "closed" at any time a SHU detainee was being escorted into or out of the cell block. The practice was instituted to block the view of the inmates and avoid encouragement of unruly behavior. While the evidence indicates that this practice was not followed invariably, there is adequate support for defendants' position that the at the time of the events at issue these window flaps were ...

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